Kerala High Court Dismisses AAP State President's Plea For ED Probe Against BJP Members In Kodakara Hawala Heist Case

The Division Bench comprising Justice Gopinath P. and Justice Syam Kumar V.M. dismissed the case as non-maintainable. 

The Counsel for the respondents had submitted that the petition was not maintainable since the investigation was complete and the final report was also filed. The Counsel appearing for ED had submitted that they have opened an Enforcement Case Information Report (ECIR) for investigating the allegations raised in the FIR like dacoity, robbery etc. and investigations were undergoing.

The case came to the public light when a car carrying money was robbed at Kodakara on the National Highway in April 2021. During the robbery investigation, the police discovered that 3.5 crores of unaccounted money was brought through hawala channels from Karnataka to Kerala to use in the election campaign by the BJP.

The plea alleged that persons affiliated with the BJP brought money through hawala transactions for the 2021 State Assembly election. The plea alleged that no investigations were carried into the hawala transactions and a probe was warranted by the Enforcement Directorate under the Prevention of Money Laundering Act, 2002.

The plea was filed seeking a direction to the State Government and State Police Chief to investigate the Hawala dealings and also to report this to the Central Government for initiating an investigation under the Unlawful Activities (Prevention) Act. The plea also alleged that no action had been taken by the Enforcement Directorate, Income Tax Department and National Investigation Agency into this incident. It was alleged that the ED would not take any action without orders from the Court. 

Earlier, the Court had orally noted that the State government, Income Tax Department and Enforcement Directorate have taken appropriate actions. 

It was also orally noted that the jurisdiction of the ED comes into play only after the state police or an agency like the CBI files the first information report for the commission of scheduled offences. Thus, regarding the inquiry under the  Prevention of Money Laundering Act, 2002, the Court held thus, 

"...it is clear that the Enforcement Directorate is not an investigating agency stricto pp.psensu. The command and mandate of the Enforcement Directorate under the 2002 Act is to ensure that no person benefits from the proceeds of crime derived out of the commission of a scheduled offence and to see that such property is confiscated to the State. Therefore, in the facts of this case there cannot be any direction issued to consider Ext.P3 which has been filed with a prayer to register a case and arrest certain individuals for that is not the mandate of the Enforcement Directorate."

Further, the Court stated that no scheduled offences have been raised in the final report and thus State Government cannot be directed to take action under the National Investigation Agency Act, 2008.

It said, " The prayer in Ext.P5 is that suitable action be taken by the State Government under Section 6 of the NIA Act 2008. This is misconceived. A reading of Section 6 of the NIA Act, 2008 shows that the process starts with the registration of an FIR under Section 154 Cr.P.C in respect of an offence set out in the Schedule to the NIA Act, 2008. A reading of Ext.P2 final report indicates that even in the final report there is no indication that any of the offences in the Schedule to the NIA Act, 2008 has been committed."

Accordingly, the Court dismissed the petition. 

Citation: 2024 LiveLaw Ker 295

The plea has been moved by Advocates Manu Ramachandran, M.Kiranlal, T.S.Sarath, R.Rajesh, Sameer M Nair, Sailakshmi Menon, Jothisha K.A., Shifana M.

Case Title: Vinod Mathew Wilson v Union of India

Case Number: WPC 17179/2024